2025 (11) TMI 1413 - AT - Income Tax

Exemption u/s 10(38) upheld; penny stock LTCG additions u/s 68 and alleged commission deleted for lack of evidence

Anju Parekh, Prop. M/s. Kushal Investment Versus Income Tax Officer, Ward-Dhamtari, Chhattisgarh.

ITAT Raipur held that exemption u/s 10(38) on alleged penny stock LTCG could not be denied merely on general reports about manipulation in the scrip and ... Denying exemption u/s. 10(38) of Long Term capital gain - addition u/s 68 - addition of commission paid to broker - assessee had traded in the scrips of “NCL Research & Finance Services Pvt. Ltd.” as been rigged and declared as penny stock company as per the report of the Investigation Wing, Kolkata as well as by SEBI - HELD THAT:- department has failed to bring out any direct involvement of the assessee for obtaining alleged bogus LTCG. Neither the A.O nor the Ld. CIT(Appeals)/NFAC has brought on record any evidence to suggest that the assessee was part of organized financial crime or that the assessee willfully transacted with the brokers, entry provider in order to obtain the so called bogus LTCG as had been alleged by the department. The Revenue has not even brought out whether it is an isolated transaction or that the assessee was regularly entered into purchase and sale of shares. Furthermore, the assessee had submitted at the time of assessment that the assessee was not aware about the fact that “NCL Research & Finance Services Pvt. Ltd.” is rigged one and it was penny stock shares. That further, the entire transaction was reflected in the Demat account and payments were always made through banking channels. These facts remains undisputed even before the Department. That in absence of any direct evidence against the assessee, it can only be concluded that the assessee can be termed as unsuspecting investor who had entered into the said investment in shares. The A.O has applied presumption and concept of human probabilities to make addition without there being any material against the assessee. Addition made in the hands of the assessee is arbitrary, bad in law and hence, the same is deleted. Addition made on account of commission income as per ad-hoc 2% for so called services used by the assessee, even without demonstrating such alleged services justifying alleged commission payments, this addition is also in the nature of being arbitrary, bad in law and hence, the same is deleted. ISSUES PRESENTED AND CONSIDERED 1. Whether sale proceeds of shares received through stock-exchange transactions, reflected in demat account and paid through banking channels, can be treated as unexplained cash credit under section 68 when the scrip is alleged to be a 'rigged' penny stock identified in an investigation report, absent direct evidence linking the assessee to manipulation or entry operators. 2. Whether exemption under section 10(38) for long-term capital gains can be denied and entire sale consideration treated as taxable on the basis of departmental investigation reports and SEBI findings about the scrip, without specific evidence of the assessee's conscious involvement in price rigging. 3. Whether an ad hoc addition of commission (2% of sale proceeds) is sustainable where no evidence demonstrates that services justifying such commission were rendered to the assessee. ISSUE-WISE DETAILED ANALYSIS Issue 1: Treating sale proceeds as unexplained cash credit under section 68 where scrip is alleged to be a rigged penny stock Legal framework: Section 68 provides that unexplained cash credits can be added to the income of the assessee where the assessee fails to satisfactorily explain the nature and source of such credits. The burden initially lies on the assessee to explain the credit; if discharged, the burden shifts to the revenue to rebut explanations with cogent evidence of falsehood or concealment. Precedent Treatment: The Court relied on High Court and Tribunal precedents holding that mere dubbing of a scrip as a penny or rigged stock in investigative/SEBI reports, without direct evidence linking the taxpayer to price rigging, entry operators or brokers, does not justify additions under section 68. Authorities referenced include decisions which refuse to infer involvement on the basis of human probabilities alone where transactions occurred through exchange, STT was paid, payments were by banking channels and shareholding reflected in demat accounts. Interpretation and reasoning: The Tribunal examined the basis of the addition and found the assessment rested on the Investigation Wing's general modus operandi for penny stocks rather than any direct nexus between the assessee and the alleged racket. The assessee's transactions were on-exchange, STT-paid, documented and evidenced in demat and banking records. No material was produced to show dealings with entry providers, brokers or that the assessee knowingly participated in manipulation. The revenue applied presumptions and 'concept of human probabilities' without producing corroborative evidence against the assessee. Ratio vs. Obiter: Ratio - where a taxpayer's share transactions are recorded on exchange, payments are through banking channels, STT is paid and the shares are reflected in demat account, the revenue cannot, on the basis of an external report identifying a scrip as a penny/rigged stock, treat the sale proceeds as unexplained cash credit under section 68 absent direct evidence implicating the taxpayer. Obiter - observations on the general functioning of penny-stock scams as described in the investigation report (used only to contextualize revenue's approach). Conclusion: The addition of Rs. 11,84,000 as unexplained cash credit under section 68 is arbitrary and unsustainable for lack of direct evidence linking the assessee to rigging/entry operators; the assessee is to be treated as an unsuspecting investor and the addition is deleted. Issue 2: Denial of exemption under section 10(38) for long-term capital gains based on investigative/SEBI findings Legal framework: Section 10(38) exempts long-term capital gains arising from transfer of equity shares where conditions (like STT payment) are satisfied. Denial requires establishment that gains are bogus or part of tax-evasion scheme attributable to taxpayer's conscious involvement. Precedent Treatment: The Tribunal relied on decisions where courts/tribunals upheld exemption or deleted additions where the department failed to show any material connecting the taxpayer to rigging or manipulative conduct, despite investigative findings against the scrip or other market participants. Interpretation and reasoning: Since the assessee had disclosed the transaction in return, paid STT, and had documentary trace (exchange trades, demat entries, banking payments), and because revenue produced no direct evidence of the assessee's willful participation in manipulation, denial of section 10(38) exemption was not justified. The assessment's reliance on an investigative report without individualized proof was insufficient to negate statutory exemption. Ratio vs. Obiter: Ratio - investigative or SEBI findings against a scrip do not automatically render a taxpayer's LTCG ineligible for exemption under section 10(38); specific evidence is required to show the taxpayer's conscious involvement in creating bogus gains. Obiter - comparative citations supporting the principle that absence of evidence of nexus with entry operators or brokers is fatal to additions. Conclusion: Denial of exemption under section 10(38) on the present facts is unsustainable; the LTCG claim stands, and the addition made on that account is deleted (cross-ref Issue 1). Issue 3: Validity of ad hoc addition of commission (2% of sale proceeds) without demonstration of services Legal framework: Additions for unexplained expenditure or fees require a factual foundation showing that payments were made for services or that such payments are sham/contrived; arbitrary percentages applied without evidence contravene principles of reasoned assessment. Precedent Treatment: The Tribunal applied the same evidentiary standards used in preceding issues and relied on principles rejecting arbitrary additions where the revenue fails to substantiate alleged service provision or nexus for commission claims. Interpretation and reasoning: The assessing officer made an ad hoc 2% addition as commission without demonstrating that any service was rendered to or procured by the assessee justifying such payment. In absence of evidence of brokerage or service agreements or routing through suspicious parties, the addition was treated as arbitrary. Because the principal addition (sale proceeds) was deleted for lack of evidence of sham transaction, the ancillary commission addition similarly lacked foundation. Ratio vs. Obiter: Ratio - ad hoc commission additions unsupported by evidence of services or contractual/vendor relationships are arbitrary and unsustainable. Obiter - reference to proportionality and corroboration requirements in making expenditure additions. Conclusion: The ad hoc addition of Rs. 23,680 as commission is arbitrary and deleted (see also Issues 1-2; answering of Additional Ground No.3 in favour of assessee makes remaining grounds academic). Cross-references and General Conclusions 1. Cross-reference: The conclusions on Issue 1 and Issue 2 are interdependent - deletion of the section 68 addition logically supports retention of exemption under section 10(38) when statutory conditions (STT, exchange trading, demat entries, banking payments) are met and no culpable nexus is established. 2. The Tribunal emphasized that departmental reliance on investigation/SEBI reports requires corroborative evidence linking the specific taxpayer to manipulative conduct; generalized reports identifying a scrip as manipulated cannot substitute for direct evidence to impugn a particular assessees' transactions. 3. Where additions are founded on presumptions and human probabilities rather than material evidence, such assessments are arbitrary and liable to be set aside. 4. Result: Additions under section 68 and for alleged commission were deleted; because the dispositive Additional Ground No.3 was allowed in favour of the assessee, remaining grounds were rendered academic.